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Amendment of the Prohibition Against Certain Flights in the Tripoli Flight Information Region (FIR) (HLLL)

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Start Preamble

AGENCY:

Federal Aviation Administration (FAA), Department of Transportation (DOT).

ACTION:

Final rule.

SUMMARY:

This action extends, with modifications to reflect changed conditions in Libya, the Special Federal Aviation Regulation (SFAR) prohibiting certain flight operations in the Tripoli Flight Information Region (FIR) (HLLL) by all: United States (U.S.) air carriers; U.S. commercial operators; persons exercising the privileges of an airman certificate issued by the FAA, except when such persons are operating U.S.-registered aircraft for a foreign air carrier; and operators of U.S.-registered civil aircraft, except where the operator of such aircraft is a foreign air carrier. This action extends the prohibition of U.S. civil flight operations in the Tripoli FIR (HLLL) at altitudes below Flight Level (FL) 300 to safeguard against continuing hazards to U.S. civil aviation. However, this action also reduces the scope of the prohibition, permitting U.S. civil aviation overflights of the Tripoli FIR (HLLL) at altitudes at and above FL300 to resume, due to the reduced risk to U.S. civil aviation operations at those altitudes. The FAA also republishes, with minor revisions, the approval process and exemption information for this SFAR, consistent with other recently published flight prohibition SFARs; makes a minor editorial change to the title of the rule; and makes other minor revisions for consistency with other recently published flight prohibition SFARs.

Start Printed Page 9951

DATES:

This final rule is effective on March 19, 2019.

Start Further Info

FOR FURTHER INFORMATION CONTACT:

Dale E. Roberts, Air Transportation Division, Flight Standards Service, Federal Aviation Administration, 800 Independence Avenue SW, Washington, DC 20591; telephone 202-267-8166; email dale.e.roberts@faa.gov.

End Further Info End Preamble Start Supplemental Information

SUPPLEMENTARY INFORMATION:

I. Executive Summary

This action extends, with modifications to reflect changed conditions in Libya, the prohibition against certain U.S. civil flight operations in the Tripoli FIR (HLLL) by all: U.S. air carriers; U.S. commercial operators; persons exercising the privileges of an airman certificate issued by the FAA, except when such persons are operating U.S.-registered aircraft for a foreign air carrier; and operators of U.S.-registered civil aircraft, except where the operator of such aircraft is a foreign air carrier, from March 20, 2019, to March 20, 2021. The FAA finds that security and safety conditions in the Tripoli FIR (HLLL) at altitudes at or above FL300 support allowing U.S. civil overflight operations at cruising altitudes at or above FL300 to resume. Extremist/militant elements operating in Libya are believed not to possess anti-aircraft weapons capable of threatening U.S. civil aviation operations at or above FL260, and there is a lower risk of civil-military deconfliction concerns at cruising altitudes at or above FL300. However, the FAA finds the extension of the prohibition on U.S. civil aviation operations in the Tripoli FIR (HLLL) at altitudes below FL300 is necessary to safeguard against continuing hazards to U.S. civil aviation associated with ongoing political instability, fighting involving various militia/extremist/militant elements, and military activity by foreign sponsors supporting various elements operating in Libya.

The FAA also republishes, with minor revisions, the approval process and exemption information for this SFAR, consistent with other recently published flight prohibition SFARs; makes a minor editorial change to the title of the rule; and makes other minor revisions for consistency with other recently published flight prohibition SFARs.

II. Legal Authority and Good Cause

A. Legal Authority

The FAA is responsible for the safety of flight in the U.S. and for the safety of U.S. civil operators, U.S.-registered civil aircraft, and U.S.-certificated airmen throughout the world. The FAA Administrator's authority to issue rules on aviation safety is found in title 49, U.S. Code, Subtitle I, sections 106(f) and (g). Subtitle VII of title 49, Aviation Programs, describes in more detail the scope of the agency's authority. Section 40101(d)(1) provides that the Administrator shall consider in the public interest, among other matters, assigning, maintaining, and enhancing safety and security as the highest priorities in air commerce. Section 40105(b)(1)(A) requires the Administrator to exercise this authority consistently with the obligations of the U.S. Government under international agreements.

This rulemaking is promulgated under the authority described in Subtitle VII, Part A, subpart III, section 44701, General requirements. Under that section, the FAA is charged broadly with promoting safe flight of civil aircraft in air commerce by prescribing, among other things, regulations and minimum standards for practices, methods, and procedures that the Administrator finds necessary for safety in air commerce and national security.

This regulation is within the scope of FAA's authority because it continues to prohibit the persons described in paragraph (a) of SFAR No. 112, § 91.1603, from conducting flight operations in the Tripoli FIR (HLLL) at altitudes below FL300 due to the continuing hazards to the safety of U.S. civil flight operations at those altitudes, as described in the preamble to this final rule.

B. Good Cause for Immediate Adoption

Section 553(b)(3)(B) of title 5, U.S. Code, authorizes agencies to dispense with notice and comment procedures for rules when the agency for “good cause” finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Section 553(d) also authorizes agencies to forgo the delay in the effective date of the final rule for good cause found and published with the rule. In this instance, the FAA finds good cause to forgo notice and comment because notice and comment would be impracticable and contrary to the public interest. In addition, it is contrary to the public interest to delay the effective date of this SFAR.

The risk environment for U.S. civil aviation in airspace managed by other countries with respect to safety of flight risks posed by weapons capable of targeting, or otherwise negatively affecting, U.S. civil aviation, as well as other hazards to U.S. civil aviation associated with fighting, extremist/militant activity, or heightened tensions, is fluid. This fluidity and the need for the FAA to rely upon classified information in assessing these risks make seeking notice and comment impracticable and contrary to the public interest. With respect to the impracticability of notice and comment procedures, the potential for rapid changes in the risks to U.S. civil aviation significantly limits how far in advance of a new or amended flight prohibition the FAA can usefully assess the risk environment. The fluid nature of these risks also means that the FAA's original proposal could become unsuitable for minimizing the hazards to U.S. civil aviation in the affected airspace during or after any public notice and comment process. Furthermore, to the extent that these rules and any amendments to them are based upon classified information, the FAA is not legally permitted to share such information with the general public, who cannot meaningfully comment on information to which they are not legally allowed access.

Under these conditions, public interest considerations also favor not seeking notice and comment for these rules and any amendments to them. While there is a public interest in having an opportunity for the public to comment on agency action, there is a greater public interest in having the FAA's flight prohibitions, and any amendments thereto, reflect the agency's most current understanding of the risk environment for U.S. civil aviation. This allows the FAA to appropriately protect the safety of U.S. operators' aircraft and the lives of their passengers and crews without over-restricting U.S. operators' routing options. The FAA has identified an ongoing need to maintain the flight prohibition for U.S. civil aviation operations at altitudes below FL300 in the Tripoli FIR (HLLL) due to continued safety-of-flight hazards associated with ongoing political instability, fighting involving various militia/extremist/militant elements, and military activity by foreign sponsors supporting various elements operating in Libya. These hazards, which are further described in the preamble to this rule, require that the FAA's flight prohibition for U.S. civil aviation operations be continued without interruption for altitudes below FL300. For altitudes at or above FL300, any delay in the effective date of the rule would continue a prohibition on U.S. civil overflights at those altitudes that the FAA has determined is no longer needed for the safety of U.S. civil aviation and would thus unnecessarily restrict U.S. operators' routing options at those altitudes.

For these reasons, the FAA finds good cause to forgo notice and comment and Start Printed Page 9952any delay in the effective date for this rule.

III. Background

As a result of safety and national security concerns regarding flight operations in the Tripoli FIR (HLLL), the FAA issued SFAR No. 112, § 91.1603, in March 2011,[1] prohibiting all: U.S. air carriers; U.S. commercial operators; persons exercising the privileges of an airman certificate issued by the FAA, except when such persons were operating U.S.-registered aircraft for a foreign air carrier; and operators of U.S.-registered civil aircraft, except operators of such aircraft that were foreign air carriers, from conducting flight operations in the Tripoli FIR (HLLL), except as provided in paragraphs (c) and (d) of the regulation.

When SFAR No. 112, § 91.1603, was first issued, an armed conflict was ongoing in Libya, which presented a hazard to U.S. civil aviation. The FAA was concerned that runways at Libya's international airports, including the main international airports serving Benghazi (HLLB) and Tripoli (HLLT), might be damaged or degraded. There was also concern that air navigation services in the Tripoli FIR (HLLL) might be unavailable or degraded. In addition, the proliferation of air defense weapons, including Man-Portable Air-Defense Systems (MANPADS), and the presence of military operations, including Libyan aerial bombardments and unplanned military flights entering and departing the Tripoli FIR (HLLL), posed a hazard to U.S. civil operators, U.S.-registered civil aircraft, and FAA-certificated airmen that might operate in the Tripoli FIR (HLLL). Additionally, the United Nations Security Council had adopted Resolution 1973 on March 18, 2011, which mandated a ban on all flights in the airspace of Libya, with certain exceptions.

By March 2014, although former Libyan leader Muammar Gaddafi's regime had been overthrown, and the UN-mandated ban on flights in Libyan airspace had been lifted, the FAA continued to have significant security concerns for Libya and for the safety of U.S. civil aviation operations in the country. On March 20, 2014, the FAA extended the expiration date of SFAR No. 112, § 91.1603, to March 20, 2015.[2] The FAA considered that, on December 12, 2013, the Department of State had issued a Travel Warning strongly advising against all non-essential travel to Libya. Additionally, many military-grade weapons remained in the hands of private individuals and groups, among them anti-aircraft weapons that could be used against civil aviation, including MANPADS.

In March 2015, the FAA continued to have significant concerns regarding the safety of U.S. civil aviation operations in the Tripoli FIR (HLLL) at all altitudes due to the hazardous situation created by the ongoing fighting involving various militant groups and Libyan military forces in various areas of Libya, including some near Tripoli and Benghazi. Islamist militant groups held and controlled significant portions of Western Libya, including areas in close proximity to Tripoli International Airport (HLLT). Militant groups, such as Libyan Dawn, possessed a variety of anti-aircraft weapons, which gave them the capability to target aircraft upon landing and departure and at higher altitudes. Civil aviation infrastructure continued to be at risk from indirect fire from mortars and rockets targeting Libyan airports during the ongoing fighting. For these reasons, the FAA extended the expiration date of SFAR No. 112, § 91.1603, from March 20, 2015, to March 20, 2017.[3]

In March 2017, the FAA continued to assess the situation in the Tripoli FIR (HLLL) as being hazardous for U.S. civil aviation. The newly-established interim government did not control vast portions of Libyan territory, security conditions remained unstable throughout the country, and the FAA was concerned that fighting could flare up with little or no warning as various elements vied for political influence and territorial control. Anti-aircraft-capable weapons remained a continuing threat, as demonstrated by the July 2016 shoot down of a military helicopter near Benghazi. Therefore, since there was a significant continuing risk to the safety of U.S. civil aviation in the Tripoli FIR (HLLL), the FAA extended the expiration date of SFAR No. 112, § 91.1603, from March 20, 2017, to March 20, 2019.[4]

IV. Discussion of the Final Rule

Since the 2017 final rule, the FAA finds that security and safety conditions have sufficiently improved to allow U.S. civil flights to operate in the Tripoli FIR (HLLL) at altitudes at or above FL300. However, the FAA finds an extension of the prohibition is necessary for altitudes below FL300 to safeguard against continuing hazards to U.S. civil aviation.

Extremist/militant elements operating in Libya are believed not to possess anti-aircraft weapons capable of threatening U.S. civil aviation operations at or above FL260, and there is a lower risk of civil-military deconfliction concerns at cruising altitudes at or above FL300. Based on this assessment, the FAA has determined that overflights of the Tripoli FIR (HLLL) may be conducted safely at or above FL300, subject to the approval of, and in accordance with the conditions established by, the appropriate authorities of Libya.

Currently, there are two air navigation service providers (ANSPs) operating in the Tripoli FIR (HLLL). The Tripoli-based ANSP is recognized by the International Civil Aviation Organization (ICAO) and has issued an Aeronautical Information Publication (AIP) and a NOTAM containing overflight procedures for civil aviation operations in the Tripoli FIR (HLLL). The ANSP in Benghazi provides air navigation services in the eastern part of the country. Despite the fact that there are two ANSPs operating in the Tripoli FIR (HLLL), the FAA has determined that this situation poses a minimal safety risk to U.S. civil overflight operations. There are appropriately publicized overflight instructions in the AIP and NOTAM. Additionally, the FAA has not received any reports of the two ANSPs providing conflicting guidance to civil aircraft or otherwise behaving in ways that would pose safety of flight concerns for international overflights.

For these reasons, the FAA has determined the risk to U.S. civil aviation in the Tripoli FIR (HLLL) has been sufficiently reduced to permit U.S. civil aviation operations at or above FL300. This change allows U.S. operators the option of using certain air routes connecting Europe with central Africa and western Africa with the Middle East. Operators are reminded to review current aeronautical information, including the relevant AIP and all applicable NOTAMS, prior to conducting flight operations in the Tripoli FIR (HLLL) at or above FL300; maintain communications with air traffic control; and follow air traffic control instructions.

The FAA remains concerned about the hazards to U.S. civil aviation operations in the Tripoli FIR (HLLL) at altitudes below FL300, which necessitate a continuing flight prohibition for those altitudes. These hazards relate to continued instability in Libya, fighting involving various militia/extremist/militant elements, the ready availability to extremists/militants of anti-aircraft-capable weapons, and Start Printed Page 9953aerial activity by foreign sponsors supporting various elements operating in Libya that may not be adequately de-conflicted with civil air traffic. The risks to U.S. civil aviation are greatest at airports in Libya and during low altitude operations near airports or in areas of actual or potential fighting.

Libya remains politically unstable, with a fragile security situation. Since the fall of the Gaddafi regime, Libya has struggled with a power vacuum, a limited security apparatus, and limited territorial control. There are multiple extremist/militant groups with footholds in Libya that are armed with anti-aircraft-capable weapons. Various militia/extremist/militant groups continue to vie for strategic influence and control of vital infrastructure, including airports. Competing armed factions have periodically clashed in close proximity to Mitiga International Airport (HLLM) in Tripoli, resulting in multiple flight disruptions. In October 2017, a Libyan Airlines A330 flying at low altitude near HLLM suffered damage from small-arms fire associated with such a clash. In January 2017, factional fighting resulted in a five-day closure of the airport and damage to multiple passenger aircraft that were on the tarmac by artillery or small-arms fire. Clashes erupted near the airport again in August 2018, resulting in multiple flight disruptions and closures of the airport throughout September 2018. On August 31, 2018, indirect fire damaged at least one hangar at HLLM, and, in October 2018, a rocket attack resulted in aircraft being relocated away from the airport and inbound flights rerouted.

Additionally, violent extremists/militants active in Libya possess, or have access to, a wide array of anti-aircraft-capable weapons posing a risk to U.S. civil aviation operating at altitudes below FL260. Aerial activity of foreign sponsors supporting various factions in Libya occurs primarily at altitudes below FL300. This amendment permits U.S. civil overflights of the Tripoli FIR (HLLL) only at FL300 and above. Foreign sponsor aerial activities that present civil-military deconfliction challenges at altitudes below FL300 include a variety of unmanned aircraft systems (UAS) and other military aircraft operations, along with the potential for electronic interference from counter-UAS measures. While aircraft overflying the Tripoli FIR (HLLL) at altitudes at or above FL300 could potentially encounter electronic interference from counter-UAS measures, such interference would not present a significant flight safety hazard. At cruising altitudes at or above FL300, pilots would have sufficient time to recognize the interference and respond to it by the use of, and verification from, other instruments or navigation aids.

Therefore, based on the changed circumstances in the Tripoli FIR (HLLL) at altitudes at and above FL300, the FAA is modifying its flight prohibition for U.S. civil aviation to permit overflights of the Tripoli FIR (HLLL) at altitudes at and above FL300, subject to the approval of, and in accordance with the conditions established by, the appropriate authorities of Libya. However, as a result of the significant continuing risk to the safety of U.S. civil aviation operating at altitudes below FL300 in the Tripoli FIR (HLLL), the FAA extends the expiration date of SFAR No. 112, § 91.1603, from March 20, 2019 to March 20, 2021, and maintains its prohibition of U.S. civil flight operations in the Tripoli FIR (HLLL) at altitudes below FL300.

The FAA will continue to actively monitor the situation and evaluate the extent to which U.S. civil operators and airmen may be able to operate safely in the Tripoli FIR (HLLL) at altitudes below FL300. Amendments to SFAR No. 112, § 91.1603, may be appropriate if the risk to aviation safety and security changes. The FAA may amend or rescind SFAR No. 112, § 91.1603, as necessary, prior to its expiration date.

The FAA also republishes, with minor revisions, the approval process and exemption information for this SFAR, so that persons described in paragraph (a) of the rule may refer to this final rule, rather than having to search through previous final rules to find the relevant approval process and exemption information. This approval process and exemption information is consistent with other similar SFARs and recent agency practice. In addition, the FAA is making an editorial correction to the title of the rule so that the ICAO four-letter FIR identification code appears in parentheses after “Tripoli Flight Information Region” or “Tripoli FIR,” in accordance with the title formatting of more recently published SFARs. The FAA also makes other minor revisions for consistency with other recently published flight prohibition SFARs.

V. Approval Process Based on a Request From a Department, Agency, or Instrumentality of the United States Government

A. Approval Process Based on an Authorization Request From a Department, Agency, or Instrumentality of the United States Government

In some instances, U.S. government departments, agencies, or instrumentalities may need to engage U.S. civil aviation to support their activities in the Tripoli FIR (HLLL) at altitudes below FL300. If a department, agency, or instrumentality of the U.S. Government determines that it has a critical need to engage any person described in SFAR No. 112, § 91.1603, including a U.S. air carrier or commercial operator, to conduct a charter to transport civilian or military passengers or cargo, or other operations, in the Tripoli FIR (HLLL) at altitudes below FL300, that department, agency, or instrumentality may request the FAA to approve persons described in SFAR No. 112, § 91.1603, to conduct such operations.

An approval request must be made directly by the requesting department, agency, or instrumentality of the U.S. Government to the FAA's Associate Administrator for Aviation Safety in a letter signed by an appropriate senior official of the requesting department, agency, or instrumentality. The FAA will not accept or consider requests for approval by anyone other than the requesting department, agency, or instrumentality. In addition, the senior official signing the letter requesting FAA approval on behalf of the requesting department, agency, or instrumentality must be sufficiently positioned within the organization to demonstrate that the senior leadership of the requesting department, agency, or instrumentality supports the request for approval and is committed to taking all necessary steps to minimize operational risks to the proposed flights. The senior official must also be in a position to: (1) Attest to the accuracy of all representations made to the FAA in the request for approval and (2) ensure that any support from the requesting U.S. Government department, agency, or instrumentality described in the request for approval is in fact brought to bear and is maintained over time. Unless justified by exigent circumstances, requests for approval must be submitted to the FAA no less than 30 calendar days before the date on which the requesting department, agency, or instrumentality wishes the proposed operations to commence.

The letter must be sent to the Associate Administrator for Aviation Safety, Federal Aviation Administration, 800 Independence Avenue SW, Washington, DC 20591. Electronic submissions are acceptable, and the requesting entity may request that the FAA notify it electronically as to whether the approval request is granted. If a requestor wishes to make an electronic submission to the FAA, the requestor should contact the Air Start Printed Page 9954Transportation Division, Flight Standards Service, at (202) 267-8166, to obtain the appropriate email address. A single letter may request approval from the FAA for multiple persons described in SFAR No. 112, § 91.1603, and/or for multiple flight operations. To the extent known, the letter must identify the person(s) expected to be covered under the SFAR on whose behalf the U.S. Government department, agency, or instrumentality is seeking FAA approval, and it must describe—

  • The proposed operation(s), including the nature of the mission being supported;
  • The service to be provided by the person(s) covered by the SFAR;
  • To the extent known, the specific locations in the Tripoli FIR (HLLL) at altitudes below FL300 where the proposed operation(s) will be conducted, including, but not limited to, the flight path and altitude of the aircraft while it is operating in the Tripoli FIR (HLLL) at altitudes below FL300 and the airports, airfields and/or landing zones at which the aircraft will take-off and land; and
  • The method by which the department, agency, or instrumentality will provide, or how the operator will otherwise obtain, current threat information and an explanation of how the operator will integrate this information into all phases of the proposed operations (i.e., pre-mission planning and briefing, in-flight, and post-flight phases).

The request for approval must also include a list of operators with whom the U.S. Government department, agency, or instrumentality requesting FAA approval has a current contract(s), grant(s), or cooperative agreement(s) (or its prime contractor has a subcontract(s)) for specific flight operations in the Tripoli FIR (HLLL) at altitudes below FL300. Additional operators may be identified to the FAA at any time after the FAA approval is issued. However, all additional operators must be identified to, and obtain an Operations Specification (OpSpec) or Letter of Authorization (LOA) from, the FAA, as appropriate, for operations in the Tripoli FIR (HLLL) at altitudes below FL300, before such operators commence such operations. The approval conditions discussed below apply to any such additional operators. Updated lists should be sent to the email address to be obtained from the Air Transportation Division, by calling (202) 267-8166.

If an approval request includes classified information, requestors may contact Aviation Safety Inspector Dale E. Roberts for instructions on submitting it to the FAA. His contact information is listed in the For Further Information Contact section of this final rule.

FAA approval of an operation under SFAR No. 112, § 91.1603, does not relieve persons subject to this SFAR of their responsibility to comply with all other applicable FAA rules and regulations. Operators of civil aircraft must comply with the conditions of their certificate, OpSpecs, and LOAs, as applicable. Operators must also comply with all rules and regulations of other U.S. Government departments or agencies that may apply to the proposed operation(s), including, but not limited to, regulations issued by the Transportation Security Administration.

B. Approval Conditions

If the FAA approves the request, the FAA's Aviation Safety Organization will send an approval letter to the requesting department, agency, or instrumentality informing it that the FAA's approval is subject to all of the following conditions:

(1) The approval will stipulate those procedures and conditions that limit, to the greatest degree possible, the risk to the operator, while still allowing the operator to achieve its operational objectives.

(2) Before any approval takes effect, the operator must submit to the FAA:

(a) A written release of the U.S. Government from all damages, claims, and liabilities, including without limitation legal fees and expenses, relating to any event arising out of or related to the approved operations in the Tripoli FIR (HLLL) at altitudes below FL300; and

(b) The operator's written agreement to indemnify the U.S. Government with respect to any and all third-party damages, claims, and liabilities, including without limitation legal fees and expenses, relating to any event arising from or related to the approved operations in the Tripoli FIR (HLLL) at altitudes below FL300.

(3) Other conditions that the FAA may specify, including those that may be imposed in OpSpecs or LOAs, as applicable.

The release and agreement to indemnify do not preclude an operator from raising a claim under an applicable non-premium war risk insurance policy issued by the FAA under chapter 443 of title 49, U.S. Code.

If the FAA approves the proposed operation(s), the FAA will issue an OpSpec or a LOA, as applicable, to the operator(s) identified in the original request authorizing them to conduct the approved operation(s), and will notify the department, agency, or instrumentality that requested the FAA approval of any additional conditions beyond those contained in the approval letter.

VI. Information Regarding Petitions for Exemption

Any operations not conducted under an approval issued by the FAA through the approval process set forth previously must be conducted under an exemption from SFAR No. 112, § 91.1603. A petition for exemption must comply with 14 CFR part 11 and requires exceptional circumstances beyond those contemplated by the approval process described in the previous section. In addition to the information required by 14 CFR 11.81, at a minimum, the requestor must describe in its submission to the FAA—

  • The proposed operation(s), including the nature of the operation;
  • The service to be provided by the person(s) covered by the SFAR;
  • The specific locations in the Tripoli FIR (HLLL) at altitudes below FL300 where the proposed operation(s) will be conducted, including, but not limited to, the flight path and altitude of the aircraft while it is operating in the Tripoli FIR (HLLL) at altitudes below FL300 and the airports, airfields and/or landing zones at which the aircraft will take-off and land;
  • The method by which the operator will obtain current threat information, and an explanation of how the operator will integrate this information into all phases of its proposed operations (i.e., the pre-mission planning and briefing, in-flight, and post-flight phases); and
  • The plans and procedures that the operator will use to minimize the risks, identified in this preamble, to the proposed operations, so that granting the exemption would not adversely affect safety or would provide a level of safety at least equal to that provided by this SFAR. Note: The FAA has found comprehensive, organized plans and procedures to be helpful in facilitating the agency's safety evaluation of petitions for exemption from flight prohibition SFARs.

Additionally, the release and agreement to indemnify, as referred to previously, are required as a condition of any exemption that may be issued under SFAR No. 112, § 91.1603.

The FAA recognizes that operations that may be affected by SFAR No. 112, § 91.1603, may be planned for the governments of other countries with the support of the U.S. Government. While these operations will not be permitted through the approval process, the FAA will consider exemption requests for such operations on an expedited basis Start Printed Page 9955and prior to any private exemption requests.

If a petition for exemption includes security-sensitive or proprietary information, requestors may contact Aviation Safety Inspector Dale E. Roberts for instructions on submitting it to the FAA. His contact information is listed in the For Further Information Contact section of this final rule.

VII. Regulatory Notices and Analyses

Changes to Federal regulations must undergo several economic analyses. First, Executive Orders 12866 and 13563 direct that each Federal agency shall propose or adopt a regulation only upon a reasoned determination that the benefits of the intended regulation justify its costs. Second, the Regulatory Flexibility Act of 1980 (Pub. L. 96-354), as codified in 5 U.S.C. 603 et seq., requires agencies to analyze the economic impact of regulatory changes on small entities. Third, the Trade Agreements Act of 1979 (Pub. L. 96-39), as codified in 19 U.S.C. chapter 13, prohibits agencies from setting standards that create unnecessary obstacles to the foreign commerce of the United States. In developing U.S. standards, the Trade Agreements Act requires agencies to consider international standards and, where appropriate, that they be the basis of U.S. standards. Fourth, the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4), as codified in 2 U.S.C. chapter 25, requires agencies to prepare a written assessment of the costs, benefits, and other effects of proposed or final rules that include a Federal mandate likely to result in the expenditure by State, local, or tribal governments, in the aggregate, or by the private sector, of $100 million or more annually (adjusted for inflation with base year of 1995). This portion of the preamble summarizes the FAA's analysis of the economic impacts of this final rule.

In conducting these analyses, the FAA has determined that this final rule has benefits that justify its costs. This rule is a significant regulatory action, as defined in section 3(f) of Executive Order 12866, as it raises novel policy issues contemplated under that Executive Order. As notice and comment under 5 U.S.C. 553 are not required for this final rule, the regulatory flexibility analyses described in 5 U.S.C. 603 and 604 regarding impacts on small entities are not required. This rule will not create unnecessary obstacles to the foreign commerce of the United States. This rule will not impose an unfunded mandate on State, local, or tribal governments, or on the private sector, by exceeding the threshold identified previously.

A. Regulatory Evaluation

This action extends the expiration date of SFAR No. 112, § 91.1603, until March 20, 2021, and amends the rule to allow U.S. civil flight operations at altitudes at or above FL300 in the Tripoli FIR (HLLL). The FAA has determined that continuing to prohibit U.S. civil flight operations at altitudes below FL300 in the Tripoli FIR (HLLL) imposes only minimal cost, because few operators subject to the rule wish to operate in that airspace, owing to the continuing significant hazards to U.S. civil aviation therein, as detailed in the preamble of this final rule. The final rule provides an approval process, as previously described, for U.S. Government departments, agencies, and instrumentalities needing to engage U.S. civil aviation to support their activities in the Tripoli FIR (HLLL) at altitudes below FL300. Since 2011, when SFAR No. 112 was first issued, the FAA has granted a small number of such approvals, only two of which are currently active. Further supporting the finding, the FAA has only received one petition for exemption from SFAR No. 112, § 91.1603, since its original issuance in 2011. That petition for exemption was subsequently withdrawn by the petitioner. As a result, the FAA finds the rule to be cost-beneficial, since the costs to the few operators who might wish to operate in the Tripoli FIR (HLLL) at altitudes below FL300 are exceeded by the benefits of avoiding significant loss of life, injuries, and property damage that might result if a U.S. operator's aircraft were downed by any of the hazards described in the preamble to this final rule.

The FAA has determined, however, that extremist/militant elements operating in Libya are assessed not to possess anti-aircraft weapons capable of threatening U.S. civil aviation above FL260 and has also determined that there is a reduced risk of civil-military deconfliction concerns at cruising altitudes above FL300. Based on these assessments, this action amends the rule to allow overflights of the Tripoli FIR (HLLL) by U.S. civil operators and airmen at or above FL300. This provision is cost-beneficial, because it allows U.S. civil aviation operators the option of using certain air routes connecting Europe with central Africa and western Africa with the Middle East. These expected benefits outweigh the expected costs associated with the residual risk to U.S. civil aviation operations at or above FL300 from the hazards described in the preamble to this final rule.

B. Regulatory Flexibility Act

The Regulatory Flexibility Act (RFA), in 5 U.S.C. 603, requires an agency to prepare an initial regulatory flexibility analysis describing impacts on small entities whenever an agency is required by 5 U.S.C. 553, or any other law, to publish a general notice of proposed rulemaking for any proposed rule. Similarly, 5 U.S.C. 604 requires an agency to prepare a final regulatory flexibility analysis when an agency issues a final rule under 5 U.S.C. 553, after being required by that section or any other law to publish a general notice of proposed rulemaking. The FAA found good cause to forgo notice and comment and any delay in the effective date for this rule. As notice and comment under 5 U.S.C. 553 are not required in this situation, the regulatory flexibility analyses described in 5 U.S.C. 603 and 604 are not required.

C. International Trade Impact Assessment

The Trade Agreements Act of 1979 (Pub. L. 96-39) prohibits Federal agencies from establishing standards or engaging in related activities that create unnecessary obstacles to the foreign commerce of the United States. Pursuant to this Act, the establishment of standards is not considered an unnecessary obstacle to the foreign commerce of the United States, so long as the standard has a legitimate domestic objective, such as the protection of safety, and does not operate in a manner that excludes imports that meet this objective. The statute also requires consideration of international standards and, where appropriate, that they be the basis for U.S. standards.

The FAA has assessed the potential effect of this final rule and determined that its purpose is to protect the safety of U.S. civil aviation from hazards to aircraft operations in the Tripoli FIR (HLLL), a location outside the U.S. Therefore, this final rule complies with the Trade Agreements Act of 1979.

D. Unfunded Mandates Assessment

Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires each Federal agency to prepare a written statement assessing the effects of any Federal mandate in a proposed or final agency rule that may result in an expenditure of $100 million or more (in 1995 dollars) in any one year by State, local, and tribal governments, in the aggregate, or by the private sector; such a mandate is deemed to be a “significant Start Printed Page 9956regulatory action.” The FAA currently uses an inflation-adjusted value of $155 million in lieu of $100 million.

This final rule does not contain such a mandate. Therefore, the requirements of Title II of the Act do not apply.

E. Paperwork Reduction Act

The Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) requires that the FAA consider the impact of paperwork and other information collection burdens imposed on the public. The FAA has determined there is no new requirement for information collection associated with this final rule.

F. International Compatibility and Cooperation

In keeping with U.S. obligations under the Convention on International Civil Aviation, it is FAA's policy to conform to ICAO Standards and Recommended Practices to the maximum extent practicable. The FAA has determined there are no ICAO Standards and Recommended Practices that correspond to this regulation.

While the FAA's flight prohibition does not apply to foreign air carriers, DOT codeshare authorizations prohibit foreign air carriers from carrying a U.S. codeshare partner's code on a flight segment that operates in airspace for which the FAA has issued a flight prohibition. In addition, foreign air carriers and other foreign operators may choose to avoid, or be advised/directed by their civil aviation authorities to avoid, airspace for which the FAA has issued a flight prohibition.

G. Environmental Analysis

The FAA has analyzed this action under Executive Order 12114, Environmental Effects Abroad of Major Federal Actions (44 FR 1957, January 4, 1979), and DOT Order 5610.1C, Paragraph 16. Executive Order 12114 requires the FAA to be informed of environmental considerations and take those considerations into account when making decisions on major Federal actions that could have environmental impacts anywhere beyond the borders of the United States. The FAA has determined this action is exempt pursuant to Section 2-5(a)(i) of Executive Order 12114, because it does not have the potential for a significant effect on the environment outside the United States.

In accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures,” paragraph 8-6(c), FAA has prepared a memorandum for the record stating the reason(s) for this determination; this memorandum has been placed in the docket for this rulemaking.

VIII. Executive Order Determinations

A. Executive Order 13132, Federalism

The FAA has analyzed this rule under the principles and criteria of Executive Order 13132, Federalism. The agency has determined this action would not have a substantial direct effect on the States, or the relationship between the Federal Government and the States, or on the distribution of power and responsibilities among the various levels of government, and, therefore, would not have Federalism implications.

B. Executive Order 13211, Regulations That Significantly Affect Energy Supply, Distribution, or Use

The FAA analyzed this rule under Executive Order 13211, Actions Concerning Regulations that Significantly Affect Energy Supply, Distribution, or Use (May 18, 2001). The agency has determined that it would not be a “significant energy action” under the executive order and would not be likely to have a significant adverse effect on the supply, distribution, or use of energy.

C. Executive Order 13609, Promoting International Regulatory Cooperation

Executive Order 13609, Promoting International Regulatory Cooperation, (77 FR 26413, May 4, 2012) promotes international regulatory cooperation to meet shared challenges involving health, safety, labor, security, environmental, and other issues and to reduce, eliminate, or prevent unnecessary differences in regulatory requirements. The FAA has analyzed this action under the policies and agency responsibilities of Executive Order 13609, and has determined that this action would have no effect on international regulatory cooperation.

D. Executive Order 13771, Reducing Regulation and Controlling Regulatory Costs

This rule is not subject to the requirements of E.O. 13771 (82 FR 9339, Feb. 3, 2017) because it is issued with respect to a national security function of the United States.

IX. Additional Information

A. Availability of Rulemaking Documents

An electronic copy of a rulemaking document may be obtained from the internet by—

Copies may also be obtained by sending a request (identified by amendment or docket number of this rulemaking) to the Federal Aviation Administration, Office of Rulemaking, ARM-1, 800 Independence Avenue SW, Washington, DC 20591, or by calling (202) 267-9677.

Except for classified material, all documents the FAA considered in developing this rule, including economic analyses and technical reports, may be accessed from the internet through the Federal Document Management System Portal referenced previously.

B. Small Business Regulatory Enforcement Fairness Act

The Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA) (Pub. L. 104-121) (set forth as a note to 5 U.S.C. 601) requires FAA to comply with small entity requests for information or advice about compliance with statutes and regulations within its jurisdiction. A small entity with questions regarding this document may contact its local FAA official, or the persons listed under the FOR FURTHER INFORMATION CONTACT heading at the beginning of the preamble. To find out more about SBREFA on the internet, visit http://www.faa.gov/​regulations_​policies/​rulemaking/​sbre_​act/​.

Start List of Subjects

List of Subjects in 14 CFR Part 91

  • Air traffic control
  • Aircraft
  • Airmen
  • Airports
  • Aviation safety
  • Freight
  • Libya
End List of Subjects

The Amendment

In consideration of the foregoing, the Federal Aviation Administration amends chapter I of title 14, Code of Federal Regulations, part 91, as follows:

Start Part

PART 91—GENERAL OPERATING AND FLIGHT RULES

End Part Start Amendment Part

1. The authority citation for part 91 continues to read as follows:

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Authority: 49 U.S.C. 106(f), 106(g), 1155, 40101, 40103, 40105, 40113, 40120, 44101, 44111, 44701, 44704, 44709, 44711, 44712, 44715, 44716, 44717, 44722, 46306, 46315, 46316, 46504, 46506-46507, 47122, 47508, 47528-47531, 47534, Pub. L. 114-190, 130 Stat. 615 (49 U.S.C. 44703 note); articles 12 and 29 of the Convention on International Civil Aviation (61 Stat. 1180), (126 Stat. 11).

End Authority Start Amendment Part

2. Revise § 91.1603 to read as follows:

End Amendment Part
Start Printed Page 9957
Special Federal Aviation Regulation No. 112—Prohibition Against Certain Flights in the Tripoli Flight Information Region (FIR) (HLLL).

(a) Applicability. This Special Federal Aviation Regulation (SFAR) applies to the following persons:

(1) All U.S. air carriers and U.S. commercial operators;

(2) All persons exercising the privileges of an airman certificate issued by the FAA, except when such persons are operating U.S.-registered aircraft for a foreign air carrier; and

(3) All operators of U.S.-registered civil aircraft, except where the operator of such aircraft is a foreign air carrier.

(b) Flight prohibition. Except as provided in paragraphs (c) and (d) of this section, no person described in paragraph (a) of this section may conduct flight operations in the Tripoli Flight Information Region (FIR) (HLLL).

(c) Permitted operations. This section does not prohibit persons described in paragraph (a) of this section from conducting flight operations in the Tripoli Flight Information Region (FIR) (HLLL) under the following circumstances:

(1) Overflights of the Tripoli FIR (HLLL) may be conducted at altitudes at or above FL300, subject to the approval of, and in accordance with the conditions established by, the appropriate authorities of Libya.

(2) Flight operations in the Tripoli FIR (HLLL) at altitudes below FL300 are permitted if they are conducted under a contract, grant, or cooperative agreement with a department, agency, or instrumentality of the U.S. Government (or under a subcontract between the prime contractor of the department, agency, or instrumentality and the person described in paragraph (a) of this section) with the approval of the FAA, or under an exemption issued by the FAA. The FAA will consider requests for approval or exemption in a timely manner, with the order of preference being: First, for those operations in support of U.S. Government-sponsored activities; second, for those operations in support of government-sponsored activities of a foreign country with the support of a U.S. Government department, agency, or instrumentality; and third, for all other operations.

(d) Emergency situations. In an emergency that requires immediate decision and action for the safety of the flight, the pilot in command of an aircraft may deviate from this section to the extent required by that emergency. Except for U.S. air carriers and commercial operators that are subject to the requirements of 14 CFR part 119, 121, 125, or 135, each person who deviates from this section must, within 10 days of the deviation, excluding Saturdays, Sundays, and Federal holidays, submit to the responsible Flight Standards Office a complete report of the operations of the aircraft involved in the deviation, including a description of the deviation and the reasons for it.

(e) Expiration. This Special Federal Aviation Regulation (SFAR) will remain in effect until March 20, 2021. The FAA may amend, rescind, or extend this SFAR, as necessary.

Start Signature

Issued in Washington, DC, under the authority of 49 U.S.C. 106(f) and (g), 40101(d)(1), 40105(b)(1)(A), and 44701(a)(5), on March 12, 019.

Daniel K. Elwell,

Acting Administrator.

End Signature End Supplemental Information

Footnotes

1.  76 FR 16238, March 23, 2011.

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2.  79 FR 15679, March 20, 2014, corrected at 79 FR 19288, April 8, 2014.

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3.  80 FR 15503, March 24, 2015.

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4.  82 FR 14433, March 21, 2017.

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[FR Doc. 2019-04896 Filed 3-18-19; 8:45 am]

BILLING CODE 4910-13-P